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In a provocative essay on State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003),Martha McCluskey of State University at Buffalo Law School argues that the case demonstrates that the "real action on issues of class in constitutional law may be taking place under the rubric of process." Entitled "Constitutionalizing Class Inequality: Due Process in State Farm," 56 Buffalo Law Review 1035-1057 (2008) (and available on ssrn), the essay builds on McCluskey's former scholarship demonstrating the slipperiness between substantive and procedural due process. As McCluskey notes, legal arguments in the US for economic rights as substantive due process rights have not gained serious traction. Indeed, she argues that even procedural arguments for the non-wealthy are recast into illegitimate substantive due process claims. Meanwhile, "substantive protections for wealthy capital owners' interests" are recast - - - as recognized - - - in a "procedural guise as narrow technicalities or as neutral formal principles."

McCluskey argues that the Court in State Farm was problematic for several reasons. She argues that the Court's preoccupation with the wide discretion by states in the award of punitive damages is not tolerated, while the wide discretion by states in the imposition of the death penalty or the enforcement of domestic violence retraining orders is deemed legitimate. She also argues the State Farm decision "constitutionalizes class inequality by interpreting class opposition to wealthy capital owners as fundamentally unfair":

The Court's central concern may be that high punitive damage awards are likely to reflect intentional class resentment by the non-wealthy. The majority opinion quoted an earlier precedent warning that “juries will use their verdicts to express biases against big businesses” and also noted that the Utah court had taken into account State Farm's massive wealth in measuring meaningful deterrence and punishment. Turning the famous Carolene Products Footnote Four on its head, the Court rules that wealthiest, most organized capital interests deserve special constitutional protection against substantive policymaking and law enforcement.

This essay makes useful reading when considering the arguments in the tobacco litigation cases as well as in Atlantic Atlantic Sounding Co., Inc. v. Townsend, argued March 3, which has been overshadowed by Caperton, the judicial bias case blogged here. Yet both Townsend and Caperton pose similar questions about the integrity of the judicial process given economic inequalities.

In Townsend, the certified question is "May a seaman recover punitive damages for the willful failure to pay maintenance and cure?" with the Eleventh Circuit answering in the affirmative, and departing from other Circuits.

However, as Justice Ginsburg made very clear in the Oral Argument's first question, this case is about the kind of class inequality McCluskey is discussing in her essay.

GINSBURG: Mr. McCreadie, in this case, why is it necessary to get into that, whether there are punitive damages under FELA and the Jones Act? If we accept, as I think we must, Townsend's allegations to be true, he has said that Atlantic, as a matter of routine, puts in a boilerplate complaint for declaratory relief, reciting all the reasons why somebody could not get maintenance and cure, even though that is patently false, the allegation for example that he deserted his post. He says it's false. He said the allegation that he falsified his application for employment is false. Accepting the -- that to be true at this stage, isn't there some kind of punitive measure to be taken against a litigant who abuses the court process in that way?

Ginsburg later adds that "The allegations made by Townsend go far beyond that they just unreasonably denied him maintenance and cure. They suggest that this litigant, as a matter practice, standard operating procedure, makes false claims before a court. And my question to you is, isn't across the board there a sanction, wholly apart from the particular claim, for a litigant who abuses the court's processes?"

That the "litigant" to which Ginsburg refers is a corporation possessed of greater resources remains highly relevant - - - and in McCluskey's view this inequality should be a major consideration. In these days of changing perceptions of corporations, wealth, and economic inequality, McCluskey's essay warrants much consideration.